R. v. A.A.S. Date:, 2013 BCPC 285

Citation: R. v. A.A.S. Date: 20130829 2013 BCPC 0285 File No: 199460-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.A.S. (A.S.) ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: T. Dotten Counsel for the Defendant: M. Berry Place of Hearing: Surrey , B.C. Date of Hearing: August 27, 2013 Date of Judgment: August 29, 2013 [ 1 ] THE COURT : This is an extremely complicated family setting in which A.S. and S.J. share a three-year-old boy, A. The two

of them were involved with the Ministry of Children and Families in early 2013, to the extent that A.S. had been restricted to one hour of supervised access at the Ministry offices over the course of a period of time due to her previous, and it could be ongoing, circumstances of drug abuse, alcohol abuse and general inability to function in society. I am told that there is, and on the evidence, some issue with respect to mental stability, mental health, either secondary to drug abuse and alcohol, or primarily related to that.

There are, as well, clearly in her demeanour, her presentation and the way in which she responds and gives evidence, issues relating to culture and literacy, and she is at an apparent disadvantage in interacting with S.A.J. (S.J.), the complainant in this matter. [ 2 ] S.J. states, with respect to the matter, that there was an invitation for A.S. to come over on the evening of the 6th of April, 2013, and that she entered into his premise as an invitee, that when she attended she was already intoxicated and, as a result of her state of intoxication and the interaction between them wherein she wanted further alcoholic beverages to be purchased, that an argument ensued, that as a result of that argument, A. came out of the bedroom and went to her and that S.J. then quickly grabbed A. from her lap and placed him back in the crib, thereby precluding her from interacting with A., and the fight was on. [ 3 ] It is apparent that there are major differences in the evidence of A.S. and the evidence of S.J.

It is also apparent from the evidence of Cst. Kane (phonetic) who attended in response to S.J.'s call, that S.J. provided a statement to the police and showed, while in an emotionally-distressed state where he was sweating quite a bit, pacing, angry and disturbed, a small scratch on the top of his thumb on his right hand, and scratches and abrasions on the inner part of his right forearm. There was no complaint by S.J. to injuries on his chest or his upper back or shoulder at the time to Cst. Kane. He was asked specifically of that. He did not detect odours of liquor. There was no suspicion of other substances.

There is no indication of S.J. being either intoxicated or using contraband in the form of controlled drugs and substances. [ 4 ] S.J. was affirmed. He is (age) years of age. He has a disability pension. He has had mobility difficulties. He is a large man. He is physically imposing. He was asked if he had difficulty moving quickly and he said in short bursts he is capable of moving quite quickly. He confirmed that his residence is at (address) in Surrey, and he described the relationship between him and A.S. as being one where she is two A.s; one when she is wonderful and the other where she is horrible.

He confirmed that they separated in spring of 2011, that he had received A. as a permanent placement through the Ministry of Children and Families pursuant to the Child, Family and Community Service Act , that he was temporarily in foster care and then placed with Dad, that Mom had gradually acquired the right for access.

The initial access was in the spring of 2012 and by the spring of 2013 they were moving to unsupervised visits from the Ministry side, but S.J. being the supervisor. [ 5 ] It is the circumstance that, he said, as a result of her actions on April the 6th, he was of the view that she was highly agitated and, in his layman's view, possibly in a psychotic state.

He could not attribute it to either one or the other but he was of the view that she was taking Seroquel at the time and that she may or may not have. [ 6 ] The interplay between the two of them in relation to the argument was terminated by A. starting to cry, and he said that he then told A.S., “You need to go home. Come back and call me when you're feeling better, when you're sober,” that the two of them got into an argument during which she then indicated that she was going to phone 9-1-1, and she went up to complain to the landlord and spoke with the landlord saying, “Help.

He's smoking crack in front of my son and sexually assaulting him.” He said he went upstairs and at that time told her to, “Get off the property. I'm calling the police.” [ 7 ] He said that he was using his cell phone, he was angry, he was trying to calm down but he said something which was a particularly interesting statement from a witness. Right out of the blue he said at some point he got her phone and noted that he had her phone in his right hand.

Now, I note that it is his right thumb and his right arm that is the subject of the scratches which are alleged to have been perpetrated by A.S. in the form of an assault. He indicated that with respect to the phone he has no explanation for how he got it in his hands, but at some point he ended up with her phone in his hand. It was some time after the scratching which is a particularly interesting characterization of his evidence in chief, that she was in the backyard and he said, "Here's your phone," and threw her phone into the grass in the backyard. [ 8 ] He was cross-examined.

A number of allegations were put to him in cross-examination. The cross-examination was unremarkable, but there were a number of points made by Mr. Berry to the effect that there was nothing in the statement to the incident of the second burst through the door and any parental abduction of A., and the interplay between the two of them, which is the subject of his allegation of assault. [ 9 ] There was some re-direct attempted but not fulfilled. [ 10 ] A.S. testified. She is (age). She as well is on a disability pension.

She said that she had been at the house since Wednesday, that they had been together for those days and that she had both cleaned, washed her son, washed clothes with her hands because they have no laundry. (I take it what she is saying is that there is no washer and dryer so she is doing hand-washing.) That she had cleaned up and they had watched movies, gone to the park with A., they were playing with A.

She had missed her son and the two of them were together from the Wednesday before the 3rd, 4th, 5th and 6th and that in the evening of the Saturday she had earlier left to go and pay her phone bill and she had made dinner for A., and that the discussion and the difficulty was about S.J. wanting to get back together again, and she did not want that.

She did not see that as being a positive and that as a result of the interplay between the two of them and that as a result of S.J. grabbing A. with one hand around his neck and another underneath his armpit and around his body and taking A. forcibly to the bedroom while saying to her, "I will fuck you up," that the two of them were arguing.

She then got her cell phone from her purse to call 9-1-1, said she was going to call the police, and he took the phone from her hand and he took it in his hands and she says she held her hands up in front of her with her cell phone in her hand and made a twisting motion as if breaking the phone in two, that she was trying to get the phone back and that she was scratching with her hands. There is no question A.S., if she was scrabbling at the hands or arms of S.J., would cause scratches.

Her finger nails are filed into points and would be quite lethal in terms of scratching or causing the kind of surface abrasion and slicing that is apparent in the photographic Exhibit taken by Cst. Kane. [ 11 ] As a result of those two bodies of evidence, we are here dealing with s. 265 of the Code. We are also dealing with s. 34(1) and s. 37, and we are dealing with credibility. I will deal first with the law as to credibility.

[12] In order to correctly charge myself in the law, the following principles direct my analysis and assessment of the testimony ofS.J. and A.S. The issue of credibility is one of fact and cannot be determined by following a set of rules. (White v. King, (SCC), 1947 SCR 268 at 272) I also instruct myself that as the trier of fact I must consider not only the witnesses' desire to be truthful,but also opportunities of knowledge, powers of observation, judgment and memory.

Therefore, the capacity to remember, the accuracyin statement, the care in answering, the sincerity in manner, the frankness in attitude and evidence of motive, bias or evasive responsesmust all be taken into account in assessing each witness. Those are guidelines for me, as the trier, to attempt to analyze the testimony ofS.J. and A.S. [13] Counsel have addressed me on W.D. Where an accused has testified, the slavish following of the doctrine laid out by JusticeCory would require me to say, one, if I believe A.S., I must acquit her.

Two, even if I do not believe the testimony of A.S. but I am left ina reasonable doubt by it, I must acquit. Even if A.S.'s evidence does not raise a reasonable doubt, I must look to the whole of theevidence to determine whether the Crown has proven the material elements, all of them on Counts 1 and Count 2, beyond a reasonabledoubt. [14] In R. v.

H.C.W, (BC CA), 1991 68 CCC (3rd) 146, at 155, in the British Columbia Court of Appeal as hethen was, Justice Wood recommended a gloss on W.D. (He is now the Honourable Judge Wood at the Provincial Court in Duncan.) Hesaid: I would add one more instruction in such cases, which logically ought to be second in the order; namely, if after a careful consideration ofall of the evidence you are unable to decide whom to believe, you must acquit. [15] In my view it is important that I ensure that I have considered the accused's testimony in the context of the evidence as a whole.

Moreover, I am not to pit the two versions of the opposing witnesses against one another in isolation. All of the other evidence must alsobe considered. Given that factor, which is articulated in R. v. MacKenzie, (SCC), 1993 18 CR 4th, 133 at paragraph62 and paragraph 38, I am of the view that Justice Lamer, then Chief Justice of Canada, ruled that the version most favourable to theaccused is entitled to the benefit of the doubt.

All of the other evidence must be considered, as Justice La Forest said, at paragraph 38. [16] Given that, and given the circumstances of this matter, having considered the demeanour of the two witnesses, and in particularhaving considered the aspect of A.S. being at a disadvantage in English, I am being very careful not to use demeanour in this case. Thedemeanour of witnesses is of little assistance in assessing true believability. It is, however, one factor, but as was pointed out by JusticeO'Halloran in the case in Faryna v. Chorney and in Rex v.

Pressley in the late '40s and early 1950's, we are not dealing with the best actorin the witness box; we are dealing with an assessment of a witness' ability to articulate and testify, and I am to, at no stage of any criminaltrial, put myself in a position where the onus shifts to the accused. And some of the submissions of Crown counsel, Mr. Dotten in thisinstance, would cause there to be an evidentiary onus to shift to A.S. I am also mindful of the fact that I can accept some, part, or all ofany witness' testimony, and in the case of circumstances such as this, I must remind myself of the following factors: 1.

A criminal trial is not a credibility contest. 2. I should not inadvertently shift the burden upon A.S. 3. Is there evidence which raises a reasonable doubt in the Crown's case before I turn to consider A.S.'s evidence, because there aresignificant challenges to both S.J. and to A.S. in the context of their interaction on the 6th of April, 2013? [17] So, even if I do not believe the evidence of A.S. I must ask myself whether, given the magical appearance of her telephonebeing in the hand of S.J., there is a reasonable doubt as to her scrabbling for the phone in the context of this matter.

I must be verycareful in the circumstance to consider that I am dealing here with the evidence of a single witness, and so when I look at the matter, am Ilooking at circumstances of inconsistency? Am I looking at circumstances of capacity? Was there evidence of the witness having thecapacity to observe, remember or communicate the evidence? [18] S.J. was extremely articulate, but he is also partial. They are in a child custody dispute. He is in a circumstance where he hasacquired a placement with his son. Is there contradictory evidence?

Well, there is not contradictory evidence in the case of S.J., butthere is the unexplained acquisition of the telephone, and I found, with respect to that, that that is something which makes it very difficultto believe him. [19] I am therefore left in the circumstances of this case with not knowing whom to believe. Neither S.J. nor A.S. could beconsidered to be reliable, forthright witnesses on the whole of the evidence before me.

In particular, A.S. is so emotional that sheliterally could not wait for counsel to ask the questions before she was trying to give evidence, and her evidence was tailored to the mostfavourable light to her throughout her testimony. In that circumstance, it is apparent that she is being an advocate for her position, not awitness testifying as to what she remembered happening.

So, while I do not believe her evidence, I am not in a situation to look at S.J.'sevidence as providing sufficient reliability to enable me to find that the Crown has proven its case beyond a reasonable doubt. [20] I acquit A.S. on both Count 1 and Count 2. (REASONS FOR JUDGMENT CONCLUDED)